JK 526 
1876 

.C6 
Copy 1 



9 



THE 



ELECTORAL COUNT 



Of 1877, 



TESTED BY THE RULES 



OP 



Common Law 



AND 

Constitutional Jueisprudence. 



A NOTE ADDRESSED TO 



Senators Colliding and Kernan, 



MOIST- -A.. :b_ coisraER. 



(Published by Request.) 



Kew York: 
Bexj.-H. Tyrrl, Law Printer, 74 Maiden Lane. 

-187 7. 






- 



•Of, 

To the Honorable 

Messrs. CON KLIN G and KERN AN, 

Senators from New York. 

Reared and trained under the conservative insti- 
tutions of the Empire State, you are justly proud of 
the privilege, of representing them as part of its sov- 
ereign self, in the Senate Chamber of the Union. And 
that you have, in the present exigencies, been true 
to them, is best illustrated in the earnestness and 
unanimity, with which you have advocated and sup- 
ported a measure for the true ascertainment of the 
voice of the people of the United States, in the re- 
cent Presidential Campaign. 

However, as touching her material interests wheth- 
er sole, or related to those of sister Commonwealths, 
you hold those differing maxims, which express your 
several political creeds and alliances ; you are at 
one in challenging for the high type of comity 
towards those States which her jurisprudence has 
fostered, their admiration and just regard. Was 
challenging the word \ Rather let it be justifying, 
and as is apparent, by the same wise procedures 
which your predecessors in the councils of the na- 
tion first inaugurated, and thereafter persistently 
labored to secure. They filled their role of glory 
in cementing the bonds of union, by wise conces- 
sions, tempered by firm adherence, to the principles 
of justice and liberty. 

Is it too much to say, that in the part they 
played, they have secured such esteem for the ele- 
ments of the civilization they sought to perfect, as 
to commend them, and with them the statesmanship 
and jurisprudence they have developed ; so that the 
one passes as of the true stamp of patriotism, and 
the latter has been adopted, as far as the westward 
march of her bright exemplar has borne its sway ? 



Bating what is due, urging nothing in the shap- 
ing of local customs or special habitudes of various 
fatherlands and ancestries, there is no idle boasting 
in saying, that it ought never to be forgotten, (or 
if it is, it may be allowed in the statement that in 
schemes tending to discord or anarchy, it has been) 
that in sterling love for freedom, and firm hold of 
the sure Avays favoring its exercise and permanence, 
New York, through her civil heroes of the revolu- 
tionary period, secured to the Union those amend- 
ments to its common bond, which best gave proof, 
that they had not imperilled store and estate, 
honor and happiness, life and liberty, to surrender 
the fastnesses of personal, or the reserves of home 
or communal rights, ever again to the domain of 
unjust or arbitary power. They laid well the se- 
curity of the person, the locality and the common- 
wealth, against the encroachments of local tyranny, 
or the more enlarged and skilful plottings of cen- 
tralizing dominion. And in what they thus sought 
to do, the} 7 wisely consulted the oracles of eternal 
justice, and expressed clearly what was right, be- 
tween fellows under a common political tie, and 
what was due between them and their office bearers. 

There is nowhere more clearly imprinted than on 
the laws and jurisprudence of A T ew York, that 
jealous vigilance, which secures her offices from in- 
trusion, or if haply an unlawful lodgment is momen- 
tarily gained, ejects by summary, yet equable rule, 
the unauthorized occupant. And it may be safely 
affirmed, that in no State is there a more wisely 
matured body of laws, regulating the tenure of po- 
litical office, securing just responses to organic law, 
and exacting due obedience to the will of its polit- 
ical sovereigns, when the right of office is questioned 
or contested. This will be found a happy circum- 
stance, alike in the vindication of your concurrent 
counsel, against the further unchecked movement 
of partisan strife, and of that common State pride 



_ __ 



8 

which so truly prompted it ; and more evidently 
so, when it is remembered, that but little help can 
be gained from the organic, enacted or expository 
law of the general Government. Most of its offices 
are held by appointment. Of those which are 
elective, the greater part are subject to the sole 
cognizance of the constituent bodies of the National 
Legislature; and as to the residue, which seek fresh 
incumbents once only in regular periods of four 
years, no serious question has arisen until now in 
the opening of its second centennial. 

Remembering that what has been stated of con- 
gressional, is true also of State legislative bodies, 
it is to be observed, first, that most of the de- 
cisions which expound what the organic or statu- 
tory law intends, would be acknowledged in cases 
of contest over representative offices ; and perhaps* 
with special instances added, illustrate vexed 
questions in other contested elections : and 
secondly, as to the residue, they evince it to 
be equally oparative in the simplicity of its 
aim, and in determining by its canon, the will 
of the electoral body ; and this, whether the 
subject of contest is projected on the ground 
plan of society, or culminates near the highest and 
most commanding part of its superstructure. In 
other words, the rules are the same, when the 
method of enquiry is once duly instituted, whether 
the office in plaint is that of a supervisor of the 
poor or State Treasurer, or of a town supervisor or 
Chief Executive Magistrate. The cases are of less 
or greater rarity, as the segregation or massing, in 
what may be regarded as political casualties, of the 
electoral bands in trained opposition and by un- 
foreseen combinations permit, unless in some given 
instance, what would ordinarily pass as a casualty, 

* Whatever use of parallel exposition may be made in the discussion of 
similar cases, it should be remembered that parliamentary cases (decisions of 
the House of Commons) are no authority in courts of law. 
1 Deac. & Chitty, 449. 



must be confronted as a plot ; and the combinations 
show themselves when closely scanned, not only to 
have been premeditated, but brought into move- 
ment, by scoundrels under fair disguises. 

If you question the actors, the motives of com- 
plicity which first actuated them, express them- 
selves by evasions or perjuries ; and if these are 
shared by each knot of conspirators against the 
public honor, as credence is gained for this or that 
tissue of falsehoods, the minds of those innocent of 
all such nefarious strategies, are perverted with 
crude or sophisticated judgments, and soon public 
opinion is a mere phantasmagory. What in the 
case of a single concerted movement of this kind, 
and with two parties in a State,may be treated as a 
binary combination, and as such, a sufficiently form- 
idable antagonism to thorough adjustment, becomes, 
in the event of its being promoted under various 
devices, and in several Commonwealths, a study for 
the most patient of experts, and so intricate, as to 
render almost hopeless, any means of solution com- 
petent to the common mind. And thus, as in the pre- 
sent tri-lemma, where the political intention and ac- 
tion of the electors in these States have been brought 
into vexed question, in one from gross ignorance or 
contempt of law in a nomination, and in the other 
two, from probable or evident design, manifested with 
less or more clearness, in devising peculiar contriv- 
ances to coerce the popular will, into fictitious ex- 
pressions; it would be quite hopeless for any except 
those who are set apart, and duly fitted and em- 
powered for an elaborate investigation of each case, 
to seek to catch the thread of each ravelled sleeve of 
cunning, and expose its texture in its original design. 

Time may not* suffice even for the ablest minds to 
take up the story of these wrongs, given in myriads 
of versions, and draw therefrom a record of events 
having the semblance of a high probability. Per- 



5 



chance some other method of investigation may 
present itself, which will render the task simpler as 
to details, and briefer in cost of time. For it not 
seldom occurs, that however ingenious or intricate 
the contrivances of wrong, the perpetrators are 
seen to have overlooked the compassing of some 
salient point for trenching, which in the process of 
right would have been embraced in its investment, 
and thus themselves disclose the embrasure, 
through which their nefarious schemes may be es- 
pied and counteracted. 

And here it may be well further to premise that it 
would be unwise in the last degree to imagine that 
in such issues as those to be considered, the actors 
resort to all the lower kinds of fraudulent device. 
Any such imagination would in designs of compli- 
cated figure lead the enquirer wide of the mark. 
The end sought being political power, and its sub- 
servient patronage, the crudest methods would 
show the invention of the instant — extemporized — 
finesse of filching, and reveal the handiwork of the 
inexpert catspaw or the bungling adventurer. The 
subtler methods most likely to be relied on by 
trained political schemers, would lie in the prepar- 
atory work of storing power, of cumulating it dur- 
ing a series of clandestine movements, of biding 
their time until the long expected moment dawned 
on the maturity of their plot ; and then precipit- 
ating their hoarded resources and opening their 
unmasked batteries upon a surprised and over- 
whelmed population. 

Sometimes, then, there is pleaded as an inad- 
vertence or a peccadillo, and as such remittible, 
what when sternly viewed, reveals an offence 
against a clear prescription of duty, it may be bald 
disobedience to organic law. Anon it occurs, that 
those who are clothed with definite measures of 
power grasp at those more ample, and allotted in 



6 

the ordinances of society to others ; and thus the 
lower affects to supplant the higher power, and 
strains its every nerve for victory in so unseemly 
a strife. But far more dangerous than these ex- 
temporized emeutes of ambitious partizanship, are 
those organized conspiracies, in which the traitors 
are clothed with the highest honors and trusts, who, 
not in low haunts, or out of the revels of dark pur- 
lieus, but in the Capitol of the Commonwealth's 
power, under the shade of its mighty fame, and 
with its sovereign seal, proclaim as the common 
will and for the common good those legislative acts, 
whose true and only end is to mine the citadel of 
the constitution, and in the common ruin, bury the 
hopes and rights of those who intrusted them with 
representative power. 

In all such cases it is not obligatory to view with 
microscopic care, the several acts which appear as 
parts in the concerted movements, or to ascertain 
their appropriate place in the series. It is enough 
to allow their apologists so to arrange them as to 
them seems best, under their elected shape and 
dress. As in the commonest experience with liti- 
gants and criminals, the plunderer or culprit beino* 
allowed full liberty to parade his most ingenious 
statement, is met by the demurrer of his adversary 
and so most easily abashed and silenced. 

But to the law applicable to the status of the 
electoral votes in dispute, and to such testimony of 
a general character as is not widely conflicting or 
brought into serious question. And taking up, in 
the first instance, the one which presents hardly any 
impediment of fact, it is to be observed that it is near- 
ly a century and a half since the general doctrine 
of votes thrown away was first promulgated in West- 
minster Hall. Two of the earliest cases seem to 
have been decided on general principles of law, as 









where in the one of the votes of the majority of 
electors were silent ; and in the other were said 
to have been " absolutely thrown away," 
because given for two persons jointly, on single va- 
cancy. In all the cases reported, up to those de- 
cided by Lord Ellenborough, as hereinafter ad- 
verted to, the questions came up under the special 
charters of boroughs, first on general grounds of 
repugnance, and afterwards, as they were affected 
by the disabling clause of the statute, 13 Car, II. 
As to the last, the decisions were rendered for a long 
period in full sustainment of its prohibitions, and 
then their effect was varied when taken in conjunc- 
tion witli the subsequent enabling statute of 47th 
Geo. III. In the 13th year of Queen Anne, in the 
case of Regina vs. Boscawen, where ten voted for 
one Roberts, and ten for the defendant, who was a 
non-inhabitant, the judgment was rendered on the 
opinion (as stated by Mr. J. Wilmot, in Rex vs. 
Foxcroft, 2 Burr, p. 1,021) " that the votes given 
for a non-inhabitant, where inhabitancy was neces- 
sary, were holden to be thrown away." This 
necessity arose from the terms of the 
special charter under which the election was 
had, as appears by the explanation given 
by Lord Mansfield in Rex vs. Monday Cowp. 
p. 539, 'residence' being in this, as it was not in 
other boroughs, 'a precedent qualification.' In 
this and like cases, it was said that the votes 
cast for such a candidate were ' as if he were not 
in esse J* 

The nature and law of ineligibility, as affected 
by the Statutes above cited, are very clearly 
given in The King agt. Hawkins, 10 East.. 211, 
by Lord Ellenborough, who passes in review the 
previous decisions above adverted to. On the 
18th of December, 1806, Hawkins, being can- 
didate, for alderman of the borough of 
Saltash, against Spicer, had, as his opponent 



8 

also, received two votes, when notice of the 
fact, creating the disqualification of the former 
under the statute of Charles II., was given, to 
wit : that he had not partaken of the sacrament 
within a year next before the day of such election ; 
and thereafter twenty persons voted for Hawkins 
and sixteen for Spicer. Hawkins acknowledged 
the fact, when it was first charged, to be true, and 
allowed his canvass to proceed, probably knowing 
that thereafter he might, as he actually did, avail 
himself of the remedial clause in the Act of Gi-eorge 
III. He became communicant, and within the 
time prescribed by the Act, to wit., on October 4th, 
1809 ; and thereupon founded his right to retain the 
office. But Spicer treating the votes of his oppo- 
nent as a nullity, had been sworn in by two of 
the aldermen, after the Mayor had sworn in Haw- 
kins, but before the latter had sought to relieve 
himself of his disability by taking the commun- 
ion. Inasmuch, however, as by the statute, 
the disability, even if purged, 'could not re- 
store or entitle' Hawkins to the office, 'al- 
ready legally filled up and enjoyed by another 
person,' and on the ground "that the pre- 
sumption that every one has conformed to the law, 
shall stand, till something shall appear to shake 
that presumption •" Spicer having conformed to the 
Act of Charles, was adjudged to have so filled up 
and enjoyed, and rightfully to hold the office. 

The same doctrines were, after very elaborate ar- 
gument, adhered to by the same noble Chief Jus- 
tice, in the two cases of The King against Parry 
and Phillips ; and the defendants, though incapa- 
citated under the same statute of Charles, were 
held to have been rehabilitated under that of 
George, having relieved themselves of their disqual- 
ification, and been sworn in, before their several of- 
fices had been filled up and enjoyed by other per- 
sons. As an off-set or relief against supplanting 



9 

the choice of the majority by the superior dexteri- 
ty of the minority candidate in so taking possess- 
ion of the coveted office, it is expedient here to 
state, that in some cases whe re electors were igno- 
rant of the fact, that the candidate of their choice 
was obnoxious to such sacramental incom- 
petency, they were not held as bound, un- 
til fully apprized, to know a fact, which until so 
-known, was one merely of private personal cogniz- 
ance', and the minority candidate was not inducted, 
but a new election was ordered. Hence, the origin 
of the conclusion which has crept into some learned 
opinions, and as if it were one of universal applica- 
tion, that if there was not sufficient ground for the 
imputation of knowledge ' quod quisque scire tene- 
tur' of the disability, such new election, not only 
in ordinary, and the lower grades of municipal 
corporations, but in the filling of offices designated 
by organic law, should be ordered. 

Even though it stands on the highest authority (17 
Wall. 322; that a municipal corporation 4 is a portion 
of the sovereign power of a State, and the inference 
is read}' that what is true of a part is true of the 
whole; still the distinction first suggested by Lord 
Mansfield (cas. sup. cit., Cowp., 530) can not be 
overlooked. It is wisely based upon consider- 
ations db inconveiiienti. He says -'There are dif- 
ferent kinds of elections ; elections of Members of 
Parliament, verderors, corporators, &c. and different 
questions may arise out of each. Therefore, they 
must not be confounded together. * * * * Upon 
the election of a Member of Parliament or a ver- 
deror, where the electors must proceed to an elec- 
tion because they cannot stop for that day, or de- 
fer it to another time, there must be a candidate or 
candidates ; and, in that case, there is no way of 
defeating the election of one candidate proposed 
but by voting for another ; but in the business of 
corporations it is a different thing." 



10 

Seventy years after this opinion was given. 
its review with that of the others we have cite:! 
was elaborately made by Lord Dennian in Gosling 
vs. Yeley. ? Adolph. *t Ellis 406. a ease in which 
the parishoners of Braintree were convened in 
a vestry meeting for the purpose of making a vote 
to repair the parish church : the majority by vote 
refused to make, and the church wardens and 
others being a minority, subsequently voted a 
rate. He says : * Where the majority of electors 
vote for a disqualified person, in ignorance of the 
fact of disqualification, the election may be void or 
voidable, or in the la iter case may be capable of 
beiiu iro. ::e good, according to the nature of the 
disqualification : the objection may require ulterior 
proceedings to be taken before some competent 
tribunal, in order to be made available, or it may 
be such as to place the elected candidate on the 
same footing as if he never had existed, and the 
votes for him were a nullity * * * * If it be dis- 
closed afterward-, the party elected may be ousted 
and the election de .dared void : bur the candidate 
in the minority will not be deemed ip •-''-• /■■ '-"' ' 
elected." Eef erring to the duty of an elector, he 
limits it to that wh->h j - castivpon him * * * -by 
the franchise he enjoys' * * * to wit.. * to assist in 
making an election. If he dissents from the choice 
of A who is qualified, he must say so. by voting 
for some other also qualified * * * If he 
* will not oppose the election of A in the only legal 
way. he throws away his vote by directing it. 
where it has no legal force, and in so doing he 

untarily leaves unopposed, L e. assents to the 
rs : rii e o:"._er electors." * * * " "If the 
disqualification be of a sort, whereof notice is to 
be presumed, none need expressly be given. * * * ° 
Should he vote onljr for a woman to fill the office 
of mayor or burgess in Parliament, his vote would 
be thrown away." And as in the case of Taylor >:s. 






11 

the mayor of Bath, 3 Luders, 324, stated correctly 
in the King vs. Parry, &c, to which his Lordship 
next adverts, in which counsel " took the dis- 
tinction between not voting at all and voting 
for a disqualified candidate," he notes approvingly 
the answer of the Court in overruling the dis- 
tinction ; ' to vote for a person not qualified, they 
said, was the same thing as not to vote at all, 
which, it was admitted, would have been a con- 
structive assent." 

It may be proper to state that this case was dis- 
cussed on appeal to the Exchequer Chamber (see 
14 Queen's B., p. 387.), Barons Parke and 
Wilde, writing the dissenting opinions, which 
were sustained in the House of Lords (see 4 H. 
of L's Cases, p. 772) by the elaborate one given 
by Lord Truro ; the final decision on that branch of 
the case, being that what was true of corporate 
meetings for elections, was not true of such meet- 
ings convened to make a church rate, or to do other 
business ; thus approving Lord Mansfield' s view in 
a double sense. 

This history of the decisions cited, would be 
wholly useless if it failed to show clearly, that the 
common law rule that ineligibility loorked defea- 
sance of the tote given for a candidate suffering 
under it, was, for a long period of time, uniformly 
sustained in the Court of King's Bench ; that not 
until the enactment of the statute, (which has for 
years ceased to have any important place in British, 
and never had any in American legislation), making 
a matter, presumptively wholly within the personal 
knowledge of the candidate, and not within that 
of the electoral body, a ground of defeasance ; did 
the doctrine of notice to the electoral body have any 
existence. But for this, then, the rule would have 
been always operative, to the full extent of its pen- 
alty, on the occurrence of a breach of any of its 
mandates. 

The doctrines, as laid down bv the British Ju- 



12 

diciary, have been fully confirmed by the Courts of 
this country, from the first case decided in the last 
year of the last century, in the General Court of 
Maryland (4 Hair, and McH. 279) to the last except 
one published, in 1 Oreg. 123, in which, singularly 
enough, with reference to the present question, the 
statutory phrase in the General Laws of that State 
(§ 41, p. 70S), "the expressed will of a majority of 
the legal voters as indicated by their votes," is 
reduced to the equivalent formula adopted by the 
Court in the question put for solution, t; which 
candidate received the highest number of legal 
totes cast." 

In the former case Hutcheson (majority candi- 
date for Sheriff) vs. Tilden and others, summoned 
as Judges of Election, the plaintiff claimed that on 
the third day of election he had acquired property 
sufficient to make him eligible for the office of 
Sheriff. But as the language of the State Constitu- 
tion declaring the terms of the qualification, re- 
quired it. k at the time he was (is) voted for.' 
Chase, C. J., held, that the plaintiff was only enti- 
tled to such votes, as were given after he had ac- 
quired the necessary qualification, and that ; all votes 
given for a candidate. not having it at the time they 
were so given. 'were * to be thrown away and reject- 
ed, as having no force or operation in law.' 

Later decisions have adopted the rule, as to what 
sort of notice, voters at public elections are entitled, 
after the mode of suggestion last cited from the 
opinion of Denman, C. J. The Superior Court 
of Indiana, specifies in Gulick vs. New, 14 Ind., 
p. 102, cases (as giving characteristics to a class) in 
which knowledge of incompetency to hold office 
might not be inferred ; as infancy, non-residency, 
non-naturalization, not of male sex, not in exist- 
ence ; and adjudged that one who held, by virtue 
of his being mayor of a city, a judicial office 
under a State law. with jurisdiction extending 



13 

over the county, and as such disqualified by the 
constitution, from being elected to the office of 
sheriff of the county, was not only disqualified ; 
but that notice of it was chargeable upon the voters. 
In 1860, under the then new T constitution of this 
State, which declared eight, as the number of years 
in any period of twelve, as the limit of eligibility 
to certain offices ; where one having only three years 
right, was elected for four .years, and at the close of 
the third year was again a successful candidate ; 
it w r as held that the disability 'was one of which 
the voters were bound to take notice ; ' and that 
they were chargeable with knowledge of the consti- 
tutional provision, that incumbents of certain offices 
specified therein were not eligible to certain other 
offices. (See Carson vs. M. C. Phetridge,15 Ind.,327, 
from which it appears that all the cases in the 
different State Courts prior to 1860 were fully ex- 
amined.) 

The even tenor of the American decisions was well 
preserved until recently, when in tw T o cases* in 
Pennsylvania and New York, it seems to have 
been interrupted, and this only from over-nice de- 
ductions, perchance to be with great respect to the 
very learned authors of the opinions given, treated 
as not essential to the decisions rendered. 

In the first case, that of Cluley, w r ho, under a pro- 
hibition in the Constitution " that no person shall 
be twice chosen or appointed sheriff to any term of 
six years," had been elected by a majority of over 
six thousand votes in 1866, and duly returned and 
commissioned as sheriff of Alleghany County, hav- 
ing held such office for the three months of the un- 
expired term, and for the benefit of the family of 
his deceased predecessor; it was held (against a 
stately opinion of Thompson, C. J. who insisted 

* Commonwealth vs. Cluley, 56 Perm., St., 270; Peoples, rel. 
Furman vs. Clute, 50 N. Y., 451. 



14 

that the number and not the duration of the com- 
missions received was the thing forbidden), that 
the writ of quo warranto was not to be issued as of 
right to the relator ; and that there were no allega- 
tions before the Court, that sufficient notice 
had been given to the electors of the disability, 
and no averment that if the votes given for Cluley 
were thrown away, the relator received a majority 
of votes at the said election. On this ground of 
notice, the views of Lord Denman in the Queens. 
Hiorns, 7 Adolph & E., 960 and 3 Nev. & Perry 
148, were quoted approvingly. 

In the second or Clute's case, the defendant was 
claimed to have been ineligible, to the office of sup- 
erintendent of the poor of the County of Schenec- 
tady, at the general election in 1871 ; because al- 
though being a majority candidate, he had been 
elected supervisor of a ward of the city of the same 
name, accepted and discharged the duties of that 
office, until the 12th day of December then next. 
On that day he resigned, and by taking the oath, 
and tendering the bond of office, made claim there- 
to. Under the general act of 1829, a supervisor of any 
town was not to be appointed to bold the office of 
superintendent of the poor in any county ; and this 
act, by an omission of the revisers was not inserted 
in the first edition of the Rev. Stat., and did not ap- 
pear in any compilation thereof, until the 4th edi- 
tion. In 1853 this law T , referred to as in such 4th 
edition, was amended, so as by express terms to pre- 
vent such election, as well as appointment and by 
an amendment to the charter of the city in 1862, its 
supervisors of wards were made subject to the pro- 
visions of law applicable to like officers in towns. 
The amending law of 1853, was held by the Court 
of the highest resort and ability to have suf- 
ficiently expressed the intention of the Legislature, 
and not to have been an unconstitutional infringe- 
ment on the rights of electors; for the reason that the 



15 

office of superintendent of the poor was originally 
filled by appointment, and was not set up as elective 
by the Constitution of 1846, but by act of the Legis- 
lature the year following. On the remaining ques- 
tion of Clute's tenure,it was held that the doctrine of 
Westminster Hall was appropriate in saying i; to the 
elector, who, ignorant of the law which disqualifies, 
has voted for a candidate ineligible, your ignorance 
will not excuse you, and save your vote ; the law 
must stand, and your vote in conflict with it must 
be lost to you. 1 ' 

But the very learned judge Folger, who wrote 
the opinion of the Court, adds that the doctrine 
could not be carried further, and charge "upon the 
elector such a presumption of knowledge of fact 
and law as finds him full of the intent to vote in 
the face of knowledge, and to so persist in cast- 
ing his vote for one, for whom he knows that it can- 
not be counted, as to manifest a purpose to waste 
it." This proposition as one of intent to be raised 
as of law from the peculiar mode of conducting 
elections and their preliminaries in this country 
may be adverted to further on. Unquestionably, on 
the facts in this case of Clute's as before the court, 
there was not sufficient ground of evidence of such 
knowledge of fact, on the part of the electors of 
the county, outside of the ward, of which Clute was 
supervisor, as there was on the part of those within 
it, to wit, of his holding such office. Nor was any 
suggestion made in the pleadings or on the trial 
below, which, as in some of the English cases, 
brought the knowledge of the facts con- 
stituting the groundwork of the legal disability 
(see Queen vs. Mayor, 3 Law R. Q. B. 629) home 
to the whole body of electors, or to any part 
thereof, so as to work any other result than 
that their votes were cast away. But that 
no such accompanying disregard of the facts of the 
ineligibility of their candidate, was brought to the 



16 

knowledge of the majority, as that they, re- 
solved to abstain from exercising their franchise, 
and so elect the minority candidate, there can be 
not the slightest doubt ; nor ground of exception to 
the concordant validity of the judgment of the 
Court, on the record before it. 

That there is an essential difference between the 
electoral customs of Great Britain and of this coun- 
try, in the manner of conducting elections, is indis- 
putable ; and it is equally clear that the customs 
vary in two marked particulars, the first having 
reference to the manner of voting, and the second, 
though prior in point of time, to that of nomina- 
tion. As to the first, in Great Britain the vote is 
viva voce ; and in case of any sufficient cause, as of 
disqualification, ascertained after th^ vote is given, 
the original can be cancelled and a fresh vote cast. 
In this country the vote is by ballot, and when 
once deposited is beyond the control of the elector 
for any cause, because when once in the ballot-box 
it becomes the common property of the whole 
electoral body. The power over his vote until 
the close of the polls, gives considerable 
latitude to the British elector in the ex- 
ercise of his duty towards himself and his 
vote, for ascertaining any possible disqualification 
of his candidate, and correcting his blunder before 
it is too late. But to a citizen of any State in the 
Union, the known absence of any such power, de- 
volves upon him the highest sort of vigilance, as to 
the eligibility of those for whom he casts his ballot, 
unless he is content to suffer the legal penalty of 
any remissness and to throw his vote away. What 
would be a curable blunder in the one case, is an 
unpardonable breach of his electoral duty in the 
other. So that, following other legal analogies, 
judgment for any such breach ought to be admin- 
istered in a more summary manner, and on stricter 
requirements as to the exercise of vigilance, and 



17 

the possession of due knowledge, than in a conceded 
case of remissible negligence. 

This prepares the way for the suggestion of the re- 
siduary difference of electoral custom, as to the nom- 
ination of candidates. In Great Britain candidacy is 
mostly announced by him who seeks the office, or by 
some of his friends who are for this purpose in law 
his agents. In this country, as the most general, if 
not universal rule, the electoral body in its differ- 
ent parties, makes its own nominations ; not, it is 
true in a mass meeting of the whole for that pur- 
pose, but through its several nominating conven- 
tions, which to such end are virtually constituted, 
the several agents of the respective parties into 
which the whole is divided. And such is the al- 
most absolutely necessary obligation of party ties, 
in order by concert of action to effect the aim of 
such party, that the principal is bound to 
render due support to the nomination made 
by his constituted agent, who in that act, 
not only by common consent binds his princi- 
pal, but as his representative is charged with all 
the vigilance which his principal would otherwise 
be directly responsible for, in respect to the eligi- 
bility of his candidate. And hence, while in a given 
case it might be impossible to bring home to the 
members of the electoral body— who, in some cases, 
might be counted by hundreds of thousands — the 
requisite knowledge, it is comparatively easy to 
do so with reference to the small numbers of those 
duly constituted party agents, who make up politi- 
cal nominating conventions. 

Applying these principles, in conjunction with 
those judgments which have stood one hundred and 
fifty years nearly, as the basis and bulwark of the 
Anglo Saxon law of elections, to the case of Oregon 
in the electoral count ; it is of the strongest 
possible presumption, that the convention acting 
as the authorized agent of the party who voted the 



18 

electoral ticket with the name of Watts on it, knew 
him, and of him well enough, to know him as hold- 
ing an office under the General Government at the 
time of his nomination. Hence it follows that 
those voters of that party who in their ballots ac- 
credited the nomination made by their duly consti- 
tuted agents, acted in such persistent defiance of 
the mandate in the General Constitution which de- 
clares that "no * * * * person holding an office 
of trust or profit under the United States shall be 
appointed an elector," as to fall under the condem- 
nation of those who are chargeable with the knowl- 
edge of ineligibility, and of so acting as if they had 
absented themselves from the polls, and thus elect- 
ed, the minority candidate, Cronin. 

If this argument needs supplementing of its re- 
sources, by collateral proof drawn from other 
sources, it is readily found as a sequence from 
the recent amendments of the Constitution, which 
declares a citizen of each State to be also a citizen 
of the United States or in more exact form of the 
proposition, one who is of the latter class to be of 
the former in the State in which he resides. 

Now, if a citizen of a county is bound to the 
knowledge of the fact that such or such a person is 
sheriff of that county and not re- eligible for a term 
immediately succeeding the one held by him ; if a 
citizen of a State is bound to the knowledge that 
' no member of the Legislature shall receive any 
civil appointment within the State or the Senate of 
the United States from the Governor * * or Legis- 
lature, or from any city government during the 
term for which he shall have been elected ;' each 
of which laws of disqualification are in the consti- 
tution of the State of New York ; then by parity 
of reasoning, a citizen of the United States as such, 
is bound to take notice of like disqualifications 
of persons holding offices of trust or profit, as are 
expressed in their Constitution. 



-.^-w 



19 

Therefore, if the electors of Oregon, through 
their authorized representatives, met in the 
convention which nominated him, are to 
be presumed to have had knowledge of the 
fact that Watts held an office of trust or 
profit under the general Government ; and in 
their proposed nomination and alleged election of 
him, as a Presidential Elector, were acting as citi- 
zens of the United States as such in the fulfilment 
of the power vested in them as such under its Con- 
stitution, to appoint as they, as citizens, and with oth- 
er citizens of the State, might see fit by legislative en- 
actment to direct ; and were, as citizens either of the 
United States as such, or of the State as such, 
bound to take knowledge of certain inhibitions 
imposed on such power of appointment ; then they 
had such combined knowledge of the fact and law 
constituting Watt's ineligibility, that their votes 
for him w^ere nullities, and as if those giving such 
votes had not expressed any choice. Hence 3 those 
given for his opponent being a plurality, were the 
only legal votes cast, and the certificate given by 
the Governor of the State to Cronin, as the law of the 
State directed, cannot be impeached.* 

If there exists a mawkish sentimentality that the 
votes of a State are to be held in law according to 
a professed intent on the part of those claiming to 
be a majority of its voters, it can only be entertained 
by minds who fail to perceive that there is but one 
secure way for ascertaining that intent ; and that by 
methods duly instituted and perfected for the ascer- 
tainment of what are true votes, and their ascenden- 
cy over such as are given in disregard of law. In 
this age. claiming for the people of this country, ex- 
alted measures of wisdom and intelligence, there 
should be a proportionate patriotism, which will, 
for the common good, exact such evidence of wise 
and intelligent conduct on the part of the nominating 

* These views ma}* apply to other cases of ineligibility. 



20 

conventions, who represent millions of freemen, as 
would be manifest in a fair knowledge of their or- 
ganic laws, and the disabilities they proclaim, and 
intend to be practically enforced. Any relaxation 
of such a requirement is a premium for those who, 
with the criminal classes of society, rejoice in the 
contempt of duty, and in the plea of ignorance. 

From so lengthened a discussion, as that which 
the neglect in some quarters to subordinate condi- 
tional subsequent qualifications to categorical pre- 
cedent limitations, has rendered imperative, the 
transition to the second part of this thesis, is 
grateful as its statement is freed from the ambigui- 
ties of seemingly conflicting cases. The distinction 
as to range of power and limits of duty between 
those who count votes and those who enquire into 
their legality when thereunto required is simple 
and clear. The former are those clothed with . 
ministerial and the latter with judicial functions. 
The former* can never assume the province of the 
latter, who may revise and so control their doings. 
The rules of law which mark these distinctions have 
never been questioned, and are so familiar f that 
their' statement should be terse. The acts of a 
Board charged by law with canvassing the votes 
of a district or State, in the tabulation of 
the votes, are of a lower grade of evidence than 
the votes themselves, and the lists as certified by 
such board may be corrected by the votes. The 
office of a higher canvassing board, is limited to the 
ascertainment of that which is regular on the face 
of the returns, made by an inferior board to them. 
They have no right to go behind them, on the 
ground even of fraud. This alone is the province 

*2 Ld. Raym 938, 1 Bro. Par. Cas. 45, 11 Johns, 114. 

+ A few of the prominent decisions in different States are added : 
13 Ala., 805 ; 8 N. Y , 67 ; 28 CaL, 123; 13B. Mon, (Ky.) 515 ; 
16 Ohio, St., 104; 16 Mich., 283 ; 29 111., 413 ; 4 Phil., 362 ; 10 
Minn. 107 ; 27 K Y., 43 ; 1 Oreg., 149 ; 3 Hill, 42 ; 12 Barb. 217 ; 
33 N. Y. 603. 






of a judicial tribunal, which has this high pre- 
rogative, that when a given return is before it by 
proper process, its power over the return is con- 
clusive against any act of the board, except that 
which the tribunal directs. The Board is bound to 
amend its ministerial work as required to do, 
and any attempt to evade an order of the Court 
is futile. If then it shall appear that the return of 
the State Canvassing Board of Florida was amend- 
ed by them, after the same had been passed in re- 
view by the State Court, and thus became subject 
to judicial jurisdiction, there can be but little diffi- 
culty in reaching the conclusion, that that act was 
not only in contempt of judicial power but ' ultra 
vires S 

Any irregularities which are not charged to 
affect, and do not change the result, and also it may 
be inferred, (though express decisions do not go so 
far) any acts of fraud, which prove to be impo- 
tent of mischief, are not grounds of exception, either 
before the judicial tribunals or the highest ministeri- 
al boards. These latter officers, " having once can- 
vassed the votes returned, have exhausted their pow- 
er over the subject and cannot afterwards revise their 
decision by making a different determination ;" nor 
having \ ' once readied a determination can they he 
convened by mandamus from the Supreme Court, 
for the correction of any errors therein." Moreover, 
they have l ' no right to discriminate against the re- 
turns sent up to them, even on the ground of fraud 
if the same are regular on their face," unless by some 
special privilege conferred on them by statute 
they have that extraordinary power. 

The peculiarity just hinted at, anomalous as it 
is, to Anglo-Saxon notions, exists, however, in the 
State of Louisiana. "Out of the parish of Or- 
leans, there is no law providing for a judicial scru- 



22 

t ny into the votes for any other than parish offi- 
cers," 13 La. Ann'l, 89. Affirming the continued 
state of the law to the present time, Judge Talia- 
ferro says in Collins vs. Knoblock, in the 25th vol. 
of the same series : u If the statute of 1870 is liable 
to just criticism, it is no fault of the judicial tribu- 
nals. It is not for them to declare it infamous, 
even if it be so" 

In the case of this State the returning Board, to 
suit its own political penchant, or as is said to sub- 
serve the will of its masters,in this device,has mani- 
pulated the electoral vote of that State, and made it 
to count on the other side, by rejecting the votes of 
certain parishes. This it claims to have done under 
warrant of a State law,* which authorizes 
the Board so to annul such votes, whenever 
it is satisfied that acts of gross intimidation 
of the description set forth in the statute, have 
been developed in any parish or parishes so 
as ;i materially to interfere with the purity and 
freedom of the election" during its progress. 
It seems passing strange, if not worse, how- 
ever mildly or glibly such revisory control 
is phrased, that an arrant usurpation of the 
highest right of American Sovereigns, should 
be couched under color of title to such offi- 
cial franchise and vested by a statute in a ministe- 
rial board. To the electors of at least every other 
Commonwealth in the Union, such plenary power, 
when dormant, appears as the highest conceivable 
species of intimidation, and when exercised an un- 
paralleled effusion of organic crime. Such whole- 
sale disfranchisement of communities authorized to 
perpetuate in its wildest extravagance, the evil it 
professes to redress, was never achieved, by any 
autocrat of the old world, unless he defiantly threw 



* Title Elections. § 55, Digest of the Statutes of La., in 2 vols., by John Ray. 
Published by authority. New Orleans, 1870. 



mmm 



98 



his sword in the scale ; nay, no imperialism of any 
age ever ventured to put forth such a pious fraud. 
Concede the facts, as in the premises of the Stat- 
ute presumed, of acts of outrage, violence, tumult, 
or whatsoever addilamentum of intimidation, may 
be in the last degree possible and consistent with 
the equally patent facts, which the returns from 
these parishes evidence, that multitudes, undriven 
by force of arms or other engines of violence, un- 
touched with fear of any semblance of outrage, or 
of any apparitions of tumult, remained at their 
posts, and without molestation from which they 
suffered bodily harm, cast their ballots. Concede 
further, for the sake of the argument, and to give 
the words of the statute their grossest possible 
significance, that there were hostile bands set in 
array, not only to threaten, but to molest with 
dire penalties, affecting life, liberty, and property, 
voters who would not comply with their exactions 
open or covert, as to the vote to be cast ! 
Concede this aye more ! than the advocates of the 
high social standing, and moral purity of the mem- 
bers of this board allege was the measure of outrage 
and tumult which justified its course ! Now then, 
these prowling Parthians, if they assumed at any 
time, that they materially interfered with the 
purity and freedom of the election, a bodily shape, 
were part of the communities, in the cases given, 
terrorized, or they were foreign to it. If they 
came to the scene of outrage as marauders from 
without, it would seem that every prompt- 
ing of manhood, as well as the special 
provisions of the statute for such emergency 
enacted, would place in instant deployment, the 
constabulary, and if necessary, the posse of the 
precinct to repel the ruthless invasion. If they 
were partizans of the vicinage wrought up by the 
violence of frenzy, to coerce reluctant suffrages to the 
support of the ticket they had resolved to carry, 



24 

were there no summary means of redress in the 
issuing of warrants, or in those agencies known to 
the laws of other States, adequate at the time to 
arrest the progress of the outrage, or at some fu- 
ture day to bring its perpetrators to condign pun- 
ishment I But, if in either case, no such or other 
adequate measures of redress were at hand, and 
the honest electors were overborne, their will sup- 
planted, or at the worst, their ballots destroyed, 
and the polls closed ; then the stricken district 
would have had consolation in this, that they had 
succumbed to an overwhelming disaster, impro- 
vised by their enemies, unforeseen by them, and not 
been obliged to take up the lament, as now they 
must, that they were ordained in the absence of all 
peril of which they were conscious, (save that at the 
last, ' four rogues in buckram let drive' at them), 
to a like calamity and a worse disgrace. 

Can such things be ? enquire wondering freemen 
from the coast of Maine, that flouts the boisterous 
Atlantic, to the gate of California, that woos the 
gentler Pacific. It may be that the only State, of 
the thrice thirteen, which ignored the beneficence 
of the common law remedies for electoral rights, 
withheld by fraud or force, is at the mercy of an 
incomplete or emasculate system. But if so, is 
there nothing of organic law under our boasted Un- 
ion, is there nought of our common liberty, or of 
the light that heralds its orbital course, repercussed 
from the bright galaxy of the constellated States, 
that can lighten the gloom of this lone eclipsed 
State \ If there be none, then the champions of 
Louisiana's servitude have the da}^ ! Then the fear 
of conjectural danger is wiser than the readiness to 
meet it face to face ; and statutes should be planned 
and executed by those " who fear the report of a cal- 
iver worse than a struck fowl or a hurt wild duck." 

If this be so, then the proposition of law to be 
stated in the abstract is this, that it is within the 



i 



constitutional prescription of personal liberty in 
the exercise of the elective franchise by citizens of 
a State, that if a given number of them, belonging 
to or outside of any district, commit, at or near a 
poll, acts of violence, within the purview of any 
statute touching intimidation of voters by acts 
therein specified, that not only the terrorists, but 
those who, under theory of the statute are terror- 
ized, become, and of right ought to be disfranchised! 
And if this be so, then freemen may deem it better 
policy that laws should be silent, and arms reign, 
and that if unsafe in the right, they be forewarned 
in time to be secure in might ; and so maintain in 
their choice of untrammeled liberty, the liberty of 
choice, irrepressible by domestic conspiracy or for- 
eign aggression. 

It is horrible to think, as sometimes it happens in 
the convulsions of nature, and the swift aberrations 
of its forceful elements, that the innocent should suf- 
fer with the guilty. But that this sentence should, 
save in the direst of social extremities, pass 
into execution — that it should be enacted in the 
semblance of a law ! Why, this is the mockery of 
that instinctive love for right, which is before all 
law, and of which this, if not a spurious birth, is 
its creation. 

To the Constitution, as the Aegis of our liberties, 
one turns with promptitude, unless he be wise in 
the learning of its expounders. And the tempta- 
tion is great when this is looked into in its latest 
lucubrations, to wish in right earnest, that the 
views of Mr. J. FiekP were available for a State, all 
but wrecked by its own legislation. But notwith- 
standing that the general design of that instrument 
as sketched in its preamble, is, among other things, 
to establish justice and " secure the blessings of 

* Slaughter House Cases, 16 Wall., p. 96. See also opinion of 
majority of Court, pp, 74-8, 



26 

liberty," notwithstanding the clause guaranteeing 
the comity of the privileges and immunities of 
citizens, as between States, and the recent amend- 
ment which declares that " No State shall make or 
enforce any law which shall abridge the privileges 
or immunities of citizens of the United States ;" 
the majority of the Supreme Bench have decided 
that even the latter clause was not especially " in- 
tended as a protection to the citizen of a State 
against the legislative power of his own State;" 
that the privileges and immunities referred to in the 
amendment were simply those which by previous 
decisions of that tribunal, had been designated by 
the epithet "fundamental," and placed under 
the limited powers granted to the general 
government ; and were by the Fourteenth ar- 
ticle of amendment to be understood u as 
the privileges and immunities of a citizen of the 
United States as sucli, as distinguished from those 
of a citizen of a State as sueli" that it was not 
contemplated under the u power granted to enforce 
that article, to bring within the power of Con- 
gress the entire domain of civil rights heretofore 
belonging exclusively to the States," nor to con- 
stitute the Supreme Bench a " perpetual censor 
upon all legislation of the States, with authority to 
nullify such as it did not approve ;" and that such 
civil rights " rest then for their security and pro- 
tection where they have heretofore rested." 

What then, for all time, in the privilege and im- 
munity of suffrage — the most potent of all civil 
rights in the preservation of the republic — is to rest 
as a right underived from the general Constitution, 
and as an original right in the citizens of each 
State, must find its surest record in the Bill of 
Rights written on the organic law of each State. 
And if ever thence obliterated by anarchy, or by 
misrule deprived of its true efficacy, it is in such 
case summarily to be restored to its place and 



27 

just power by the will of the United States, who 
have guaranteed to each State the essence of a 
republican form of government. 

If there be any chance, then, of avoiding this ultim- 
ate and summary interposition by the strong arm of 
the nation, recourse to the Constitution of Louisi- 
ana, as opening the present door of her escape, 
is to be had. That instrument, in the second arti- 
cle of its first title, declares its citizens to be em- 
braced under the designation of those " born or 
naturalized in the United States and residents of the 
State for one year," and guarantees, under the gen- 
eral clause "they shall enjoy, " to each one what is 
accorded to any other citizens, and among other 
rights the same * * * political * * * * rights and 
privileges." 

It is in the spirit of the ninth article of amendment 
proposed, as above hinted, by the patriots of Xew 
York to the constitution of the United States that 
the fourteenth article of this title adds: "The 
rights enumerated in this title shall not be constru- 
ed to limit or abridge other rights of the people not 
herein expressed." The ninety eighth article, 
of the sixth title, declares that every male per- 
son of the foregoing description " of the age of 21 
years, &c, shall be deemed an elector, except 
those disfranchised by the Constitution, and persons 
under interdiction. The persons as in the first class 
are in the succeeding section specified as those con- 
victed of treason, perjury, forgery, bribery, or other 
crime punishable in the penitentiary \ while those 
incapacitated under the 3d section of the 14th 
Article of Amendment of the Constitution of the 
U. S., are intended for those of the second. Article 
102 especially declares, and it is an unusual decla- 
ration, except, perhaps, as a more specific limita- 
tion of the last clause in the 8th Article of the 
Amendment, as above referred to, that " all penal- 
tics shall be proportioned to the nature of the 



28 

offence;" and Article 103 adds, that " the privilege 
of free suffrage shall be supported by laws regulat- 
ing elections, and prohibiting, under adequate 
penalties, all undue influence from power, bribery, 
tumult, or other improper practice." 

Reference may be briefly made to those sections 
of the statutes which were passed in seeming com- 
pliance, at least with] these constitutional provisions. 
§ 10 requires the commissioners of election to pre- 
serve order and decorum, and gives them power to 
commit any offender to prison provided lie first be 
permitted to vote before his actual incarceration. 
This, it may be remarked in passing, is a singular 
and very highly commendable support of the guar- 
anteed right of the offender as an elector, and prior 
to any adjudication of his guilt. By the same sec- 
tion they are also required to issue their warrants 
for the arrest of disorderly persons. By section 29 
the commissioners are required to make, in dupli- 
cate, a clear and full statement of all the facts re- 
lating to, and of the effect produced by any riot, 
tumult, acts of violence, intimidation, armed dis- 
turbance, &c, in preventing a fair, free, peaceable 
and full election; and of the number of qualified 
electors deterred thereby from voting, which, state- 
ments are to be corroborated under oath by three re- 
spectable citizens, qualified electors of the parish. 
These statements are to be forwarded to the super- 
visor of registration and by him to the governor. 

§ 35 requires that the elections for electors for 
president and vice president of the United States, 
shall be held and conducted, and the re- 
turns thereof made in the manner prescribed 
by law for the general elections ; and by section 
55, the returning officers are requested first to com- 
plete their statement from all polls where there has 
been a fair, free and peaceable election ; next, to 
proceed to investigate the statements of riot, tu- 
mult, &c. at other polls, and, if satisfied that they 



~^ 






29 

did not materially interfere with the purity and 
freedom of the election, to canvass and compile the 
vote ; but if not so satisfied Jo examine further tes- 
timony, and if thereafter they shall be convinced of 
the truth of such statements, then not to canvass or 
compile the statement of such vote, but to exclude it 
from their returns. Without stopping to animad- 
vert on the very orderly methods of what is popu- 
larly if vulgarly yclept ' f gerrymandering ," the 
vote, which the Legislature saw fit to prescribe as 
the requisite compliance with the Constitutional 
mandate in this regard ; this summary ol statute 
law will be completed in the statement that § 59 
declares the offence of interfering with an elective 
officer of whatever grade, by violence or threats 
thereof, abusive language or other species of intim- 
idation, * * to be a misdemeanor and pre- 
scribes its penalty by fine, from one to three hun- 
dred dollars and imprisonment from one to three 
months, while § 60 * declares riots, tumults, acts of 
violence, intimidation or armed disturbance, at or 
near any poll, to be felony, and their penalties to 
be fines from one to five hundred dollars, and im- 
prisonment from six months to two years. Would 
it be believed that, almost in the same breath, false 
registry and toting declared together with these 
atrocious acts of riot and armed disturbance, which 
are, besides the personal vengeance visited by law, 
to cancel the entire vote of a precinct, to be feloni- 
ous, have as penalties meted out fines, the same as for 
riots, fee, but as to imprisonment, the shortest term 
is increased by 100 and the longest by 50 per cent. 

The arraignment of the section of the statute 
which commands under the circumstances it re- 
cites, the cancellation of the entire vote of one or 
more of the parishes of the State, as being "ultra 

* All the sections of the Statute on Elections, as referred to in the 
text, are as numbered in the digest noted on page 22. 



30 

vires, ,' is easily and to be briefly sustained. And 
first, the Constitution, in guaranteeing equality of 
political rights and the electoral franchise to every 
citizen, except those disfranchised for crime, &c, 
and that after conviction ; does not, and could not, 
authorize the passage of any law which effects the 
same result before conviction. Secondly, a return- 
ing board is not such a tribunal as is empowered to 
try an offender, much less to mete out to him a 
prescribed punishment, the more especially as its 
methods have no parallel except in the odious pre- 
cedents of the Star Chamber. Thirdly, no person 
can be convicted of a felonious offence without 
indictment, and in the commune in which his 
offence is charged to have been committed, a due 
trial by a jury of his peers. Fourthly, the statute 
cannot be deemed to be a furtherance of the con- 
stitutional requirement of Art. 103, which requires 
the privilege of free suffrage to be supported by 
laws regulating elections, and prohibiting, under 
adequate penalties, all undue influence, &c. First, 
because the law, instead of seeking to give the re- 
quired support, essays indirectly, and by circuitous 
processes, to destroy that free suffrage which it is 
commanded to support by proper laws, and the pre- 
scription of adequate penalties — and secondly, be- 
cause the previous section having declared that all 
penalties shall be proportioned to the nature of the 
offence, cannot so be, if measured out to others than 
the offenders. 

The power reposed under the Constitution of 
1868 in the legislature to pass laws for the protec- 
tion of the right of suffrage is not a novel one in 
the history of the State of Louisiana. The consti- 
tutional provision is the same totidem verbis, with 
that in the former preceding organic charters adopt- 
ed in 1862, 1852, 1845 and 1812. And until within 
a few years , the extinction of communal rights of 
suffrage was never dreamed of, as an adequate pen- 



•' \ „.,"';..J- v . li.„.i' '■ x l ■ . n pi ,_ i ,..,„ j , , i nn 



31 

alty for the wrongs sought to be guarded against. 
" The unconstitutionality of the police provisions 
of an election law ' has been declared by its Supreme 
Court ' not to render the vote illegal and thus dis- 
franchise the electors. 5 % The legislature cannoV 
the same opinion* declares, 5 by encompassing with 
unconstitutional provisions an election law, make 
the votes of the electors null and void" 

The true nature of the effect designed to be prevent- 
ed by any proper police law passed to secure elections 
against the evils to be remedied under the Consti- 
tutional mandate, is clearly expressed in subse- 
quent decisionsf by the same tribunal. The peti- 
tioners for a quo warranto against the defendants, 
holding the offices of mayor and councilmen of the 
town of Carrollton, represented that their election 
was carried on by intimidation, tumult and the 
interference of degraded banditti, and sought to go 
behind the certificates of the election. The writ 
granted by the District Court was dismissed for 
the reason that it was not alleged, "that a suffi- 
cient number of voters were prevented from voting 
to have varied the result of the election" 

The scope of any constitutional law, and its fin- 
al intent, are thus given in full interpretation of 
Lousiana's organic law, by its own tribunals. It 
seems unnecessary to say that such exposition 
finds its counterpart in the decisions of other States, 
and that the condemnation by the local tribunal, of 
a like law with that under which this Returning 
Board acted, and of such acts as it was guilty of, will 
meet the approval of all jurists. And unless 
such decisions can be shown to be hostile to the 
Constitution of the United States, they must stand, 
and without appeal, as the valid judgment of the 
highest competent tribunal ; the Supreme Court at 

* Andrews v. Saucier, 13 La. Ann. 301. 

t State v. Mason and others 14, do do 505. 



32 

Washington having declared,* that "it has no au- 
thority to revised State Statute, upon any ground of 
jusiice.policy or consistency toith the Stale Constitu- 
tion."' It thus becomes unnecessary to enter upon 
any discussion of this law or the action under it, as 
within the exercise of such proper police power, as 
has been accorded by the Supreme Court of the 
United States, when claimed by acts of legislation, 
held by the Courts of the State who passed them 
to be in conformity with its own Constitution. 

We have reached the outlook of the thesis last 
proposed, that a law which inflicts punishment on 
the many, for the guilt of the few, is not one of vi- 
carious substitution, but of accumulated outrage of 
punitive exaction, against the first principles of 
social order and political right, and wholly incon- 
sistent with the spirit of our institutions. 

If the considerations presented may, in any 
particular, contribute towards the adjustment of 
the problem soon to be decided, and offer 
views which have not been made familiar in the 
public discussions of the body adorned by your 
presence, the design of the writer will have been 
accomplished. 

With sentiments of high consideration, I remain 
your obedient servant, 

A. B. COGGER. 

Xo. 120 Broadway, X. Y., 

January, 30th, 1877. 

* 17 How. 456. See also, 12 "Wheat. 153. 8 Wall. 575. 
9 Wall. 35. 17 Wall. 648. 18 Wall. 7L 



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